Barry E. Moore and Deborah E. Moore - Page 53




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          payments, to be made the first of each month, beginning September           
          1, 2000, specified in Surgicoe’s promissory note to Ms. Moore.18            
          Therefore, it is clear that petitioners reported, on their 2000             
          return, no more than the cash payments received in 2000, not the            
          full amount of the selling price for Ms. Moore’s LLC membership             
          interest ($1,138,806.12) and not the full face amount of the                
          Surgicoe promissory note ($160,825.87).  Under those                        
          circumstances we find that petitioners did not elect out of the             
          installment method of reporting the income from Surgicoe’s                  
          promissory note.  See Estate of Wilkinson v. Commissioner, T.C.             
          Memo. 1993-463 (“The only method for electing out of the                    
          installment method * * * is for taxpayers to report the full                
          amount of the sales price and the full amount of the income                 
          associated with installment sales on timely filed tax returns for           
          the year of the sales.”).19                                                 


               18  Assuming the monthly payments commenced on Sept. 1,                
          2000, as specified in Surgicoe’s promissory note, the fifth                 
          payment would have been due Jan. 1, 2001.  It appears, however,             
          that that payment was included in petitioners’ 2000 return.                 
               19  Respondent cites petitioners’ failure to file a Form               
          6252, Installment Sale Income, as conclusive evidence that                  
          “petitioners have not demonstrated that they intended to report             
          their transaction under the installment method.”  Respondent does           
          not suggest that petitioners’ failure to file that form                     
          constituted a procedural defect sufficient in itself to bar                 
          petitioners’ use of the installment method, and, indeed, there is           
          no support in either sec. 453 or the regulations thereunder for             
          that position.  As we conclude herein, it is a taxpayer’s                   
          reporting of the full amount of the income derived from an                  
          installment sale (not the taxpayer’s failure to file a Form 6252)           
                                                             (continued...)           





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